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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash Podcasts. As his Supreme

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Speaker 1: Court confirmation remains in jeopardy, a defiant and at times

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Speaker 1: emotional Brett Kavanaugh addressed sexual assault allegations in an interview

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Speaker 1: on Fox News last night. Sitting next to his wife,

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Speaker 1: Kavanaugh said he wouldn't let what he called false accusations

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Speaker 1: drive him away from the process. We're looking for a

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Speaker 1: fair process where I can be heard and defend the

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Speaker 1: my integrity, my lifelong record, my lifelong record of promoting

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Speaker 1: dignity and equality for women, starting with the women who

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Speaker 1: knew me when I was fourteen years old. I'm not

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Speaker 1: going anywhere joining me is Neil Kincough, professor at Georgia

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Speaker 1: State University Law School. Neil, this is unprecedented for a

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Speaker 1: Supreme Court nominee or even a federal Appellate Court judge.

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Speaker 1: It seems more akin to what a politician might do

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Speaker 1: before an election. How does this fit in with the

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Speaker 1: esteem projected by the justices on our nation's highest court. Yeah,

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Speaker 1: I can't help but sort of picture the rest of

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Speaker 1: the justice is actually just cringing over this because they

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Speaker 1: really closely guard and highly value their privacy and the

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Speaker 1: sort of being the proverbial man behind the curtain, right

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Speaker 1: they they issue the opinions and their their private lives

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Speaker 1: are entirely that private and really they're not known to

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Speaker 1: the public. They don't seek to have a public or

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Speaker 1: political profile. Um. And so this this reality sort of

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Speaker 1: upsets that in a way that I think it's got

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Speaker 1: to make them all quite uncomfortable. What is the strategy

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Speaker 1: behind this, as far as you can see, What advantage

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Speaker 1: would it give him over testifying on Thursday. Well, I

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Speaker 1: think he's trying to, um, first of all himself look sympathetic, um,

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Speaker 1: to sort of you know, prepare the audience for Thursday,

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Speaker 1: so to create first impressions that can then help color

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Speaker 1: how people view the hearings on Thursday. UM. I also

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Speaker 1: think it serves a kind of a trial run, which

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Speaker 1: is helpful because boy, it's going to be high stakes

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Speaker 1: and nerve wracking on Thursday, and best to sort of

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Speaker 1: get your your positions out there in practice, articulating them

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Speaker 1: in front of a friendly audience, and they don't come

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Speaker 1: any friendlier than Fox News. He avoided the most difficult questions,

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Speaker 1: as he did in his confirmation hearings over and over.

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Speaker 1: So what do you expect on Thursday? More avoidance or

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Speaker 1: maybe the Democratic Senators really nail him down. Well, so

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Speaker 1: his strategy will be avoidance, right, That was his strategy

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Speaker 1: throughout the throughout the hearings, and it was a strategy

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Speaker 1: last night, and it will continue to be a strategy

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Speaker 1: on Thursday, I'm sure, and the Democratic Senators are going

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Speaker 1: to try to put him down. And I think that's

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Speaker 1: that's the game right there. The Justice is, particularly the

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Speaker 1: Chief Justice John Roberts, say over and over again that

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Speaker 1: the Supreme Court is not a part as an institution.

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Speaker 1: You hear that in so many speeches. Does this interview

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Speaker 1: in this confirmation process belie that assertion, Well, I don't

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Speaker 1: think it. It undermines the claim that the Court is

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Speaker 1: not partisan, um. But that's different from the claim that

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Speaker 1: it's not political. Right, And certainly the justices have very

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Speaker 1: strong commitments um to constitutional principles that themselves link up

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Speaker 1: to political agendas. And so while I don't think the

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Speaker 1: justices vote based on Democrat versus Republican um, it's not

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Speaker 1: at all surprising that the conservative justices adhere to conservative

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Speaker 1: values and the progressive justices the progressive ones um. And

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Speaker 1: so this kind of pulling back the curtain tends to

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Speaker 1: expose that to the public in a way that justice

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Speaker 1: is like justice Roberts really prefer to keep hidden. Only

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Speaker 1: one Supreme Court justice has been impeached in our nation's history,

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Speaker 1: Samuel Chase in No. Four. Although he was not removed

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Speaker 1: from his seat by the Senate, senator quitted him. Now.

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Speaker 1: Democratic Senator Sheldon white House has suggested that if Democrats

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Speaker 1: win in November, they'll look into the accusations leveled against

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Speaker 1: Kavanaugh if he is in fact confirmed. What what would

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Speaker 1: that look like? Well, sure, so that I don't see

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Speaker 1: how that could work. Frankly, Um, it could. You could

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Speaker 1: hold hearings in in the House, and the House could

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Speaker 1: even draw up articles of impeachment and pass them if

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Speaker 1: there's a Democratic majority, I suppose. But in order to

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Speaker 1: win a conviction and removal from office, that requires a

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Speaker 1: two thirds vote in the Senate, and that's just not

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Speaker 1: going to happen. Well, a Fordyce went through the beginnings

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Speaker 1: of this and he resigned from the Supreme Court. That's true. Um,

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Speaker 1: he was nominated while he was an associate justice. He

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Speaker 1: was nominated to be the chief Justice, and some significant

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Speaker 1: allegations of improprieties while on the bench um um were

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Speaker 1: raised to the point where he lost bipartisan support. Um.

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Speaker 1: He was eventually given he was eventually given a vote,

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Speaker 1: which he lost. Um. But you know, so it is

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Speaker 1: possible that a sitting justice who engages and really significant

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Speaker 1: impropriety um can be impeached and removed from office. But

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Speaker 1: it would be really remarkable for that impropriety to be

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Speaker 1: from the period we're talking about with respect to Judge

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Speaker 1: kaffanaugh Right. So Justice Fortis was Justice Fortis when he

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Speaker 1: when he engaged in the problematic behavior. He wasn't high

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Speaker 1: school student or college student. Fortist. Now, UM, let's talk

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Speaker 1: just talk about the idea of a lifetime appointment and

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Speaker 1: whether this leads to questioning whether that's a wise thing.

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Speaker 1: There are a lot of reasons to question whether lifetime

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Speaker 1: appointments are a wise thing. At the time of the

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Speaker 1: framing a lifetime appointment was was effectively about a twenty

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Speaker 1: year deal. Chief Justice John Marshall outlasted that by a

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Speaker 1: little bit. But for the most part, and for the

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Speaker 1: most of the nation's history, the average tenure on the

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Speaker 1: Supreme Court was around twenty years. But the recent trend

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Speaker 1: has been to a point younger and younger justices, so

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Speaker 1: they can serve longer and longer, and I don't think

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Speaker 1: that helps institutionally with the Court. So there's some really

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Speaker 1: serious UM people who suggested term limits, like twenty year

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Speaker 1: terms rather than lifetime tenure, which I think gets closer

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Speaker 1: to the original design that the Framers had in mind.

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Speaker 1: So what's your take on whether or not Kavana will

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Speaker 1: be confirmed? Do you have an idea right now of

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Speaker 1: what's going to happen. I think it's hanging by a

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Speaker 1: threat at this point. The allegations are quite credible. When

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Speaker 1: when last we spoke, UM, Dr Blasi Ford had not

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Speaker 1: yet come forward, had not issued her the allegations had

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Speaker 1: gotten out, but she said she didn't want to come forward.

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Speaker 1: She didn't want her name to be known. We didn't

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Speaker 1: know her name at that point, Um, and she didn't

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Speaker 1: want to test by. But now that she's come forward

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Speaker 1: that others have come forward. Um the denomination in critical shape,

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Speaker 1: and I think I think Kevina is going to have

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Speaker 1: to pull off a masterful performance on Thursday to survive this. Right,

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Speaker 1: we will be watching. Thanks so much, Neil. That's Neil Kincoff.

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Speaker 1: He's a professor at Georgia State University Law School. The

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Speaker 1: future of Deputy Attorney General Rod Rosenstein remains uncertain amid

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Speaker 1: reports that he was either fired or offered his resignation.

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Speaker 1: Will get more clarity on Thursday when Rosenstein meets with

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Speaker 1: President Trump. Press Secretary Sarah Sanders discussed the situation on

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Speaker 1: Good Morning America today. They had an extended conversation and

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Speaker 1: decided to continue it, and they're going to do that

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Speaker 1: on Thursday, and both agree that it was best to

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Speaker 1: have a conversation like that in person, and that's what

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Speaker 1: they're gonna do in two days. Joining me is Jimmy Carule,

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Speaker 1: professor at Notre Dame Law School. Jimmy Trump's main concern

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Speaker 1: with Rosenstein, as expressed, is over the Mueller investigation. What

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Speaker 1: happens If that is what Trump wants to discuss with Rosenstein,

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Speaker 1: what can Rosenstein tell him? Well, again, I think it

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Speaker 1: would be inappropriate for the President to engage in any

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Speaker 1: conversation with the Deputy Attorney General regarding a pending investigation,

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Speaker 1: criminal investigation, and in particular, a criminal investigation that is

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Speaker 1: targeting members of the Trump campaign and perhaps even the

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Speaker 1: President himself. So he should just refrain from getting any

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Speaker 1: detail into any details about the investigation whatsoever. That doesn't

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Speaker 1: leave much because that's what that's what you know. That

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Speaker 1: seems to be where he's been aiming his tweets and

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Speaker 1: his comments. Well, again, I think the concern is even

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Speaker 1: more more broader than than that. I think that that

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Speaker 1: he wants to remove Rosenstein from overseeing the Moller investigation,

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Speaker 1: and that's a means to an end. The ultimate end

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Speaker 1: is to have the investigation con terminated, and I think

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Speaker 1: that would require the firing of Mueller, and right now

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Speaker 1: Rosenstein Rosenstein stands in the way of that happening. Let's

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Speaker 1: discuss the difference between what could happen if Rosenstein resigns

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Speaker 1: and if he's fired legally as well as politically, because

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Speaker 1: if he resigns, Trump can replace him with another Senate

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Speaker 1: approved confirm me. But what happens if he is fired? Yeah,

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Speaker 1: if he's fired, that's going to add some some fuel

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Speaker 1: to the fire, so to speak, to the obstruction of

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Speaker 1: justice claim. That would then be the second major Department

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Speaker 1: of Justice official has been fired by the President who

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Speaker 1: is connected in a very direct way to the Muller investigation,

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Speaker 1: And of course I'm referring to former FBI Director James Comey,

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Speaker 1: who was fired in last year, in two thousand seventeen,

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Speaker 1: So that would strengthen I think the obstruction of justice

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Speaker 1: argument that is being investor sigated by by Mueller. How

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Speaker 1: is let's talk about what Mueller is doing. Do you

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Speaker 1: see signs that he has preserved his investigation in various

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Speaker 1: ways so that if something does happen to him, the

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Speaker 1: investigation can proceed or at least the evidence that they've gathered,

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Speaker 1: I think absolutely yes. With respect to individuals that have

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Speaker 1: agreed to to cooperate in the Muller investigation, and they're

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Speaker 1: quite a number, including most recently Paul Mantaford, the the

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Speaker 1: chairman of the two thousand and sixteen from presidential campaign,

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Speaker 1: I'm certain that with respect to those cooperating individuals, what

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Speaker 1: do they know about the that's relevant to the investigation

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Speaker 1: has been codified either in grand jury testimony again under

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Speaker 1: oath or in police FBI reports again that that again

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Speaker 1: it's a it's a felony to light of the FBI.

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Speaker 1: So what they know, their knowledge has been reduced to

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Speaker 1: grandjury transcripts or FBI reports who was codified and in

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Speaker 1: that manner, So what would be the greatest danger forgetting politically,

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Speaker 1: what would be the greatest danger to the Muller investigation

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Speaker 1: if Rosenstein is either fired or resigns, well, assuming that

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Speaker 1: that it's not complete or perhaps not even near completion. Uh,

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Speaker 1: the person that that replaces Rosenstein then would be in

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Speaker 1: a position to conceivably fire Muller or slow the investigation down,

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Speaker 1: or with respect to recommendations made by Mueller involving the

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Speaker 1: ongoing investigation, the person that the new deputy Attorney General

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Speaker 1: could could deny those requests and and in that effort

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Speaker 1: slowed down the investigation for the benefit of the president.

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Speaker 1: So it has some potential far sweeping consequences in a

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Speaker 1: negative way with respect to the pending investigation. You know,

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Speaker 1: we forget that Rosenstein has other things to do in

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Speaker 1: his job besides supervised the Mueller investigation, and uh, you know,

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Speaker 1: discussed to discuss things with President Trump. And he has.

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Speaker 1: His service has spanned three different presidents. Tell us about

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Speaker 1: his job outside of the Mueller investigation, how high profile

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Speaker 1: and intense it is. Well, he's basically the Deputy Attorney General,

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Speaker 1: is basically the chief operating officer for the Department of Justice,

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Speaker 1: and so he's responsible or she's responsible for overseeing the

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Speaker 1: day to day operations of the Department of Justice, and

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Speaker 1: that includes the the efforts of the investigations of the FBI,

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Speaker 1: the d e A, the Bureau of Alcohol, Tobacco, and Firearms.

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Speaker 1: He's engaged in overseeing virtually every high profile criminal investigation

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Speaker 1: that's being conducted by a d J federal law enforcement agency.

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Speaker 1: And so again, the Mueller investigation, while important and certainly

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Speaker 1: a priority, it's one of many priorities that are that

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Speaker 1: the Deputy Attorney General rosen Stein is overseen. Will rosen

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Speaker 1: Stein still have a job on Thursday, and what about

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Speaker 1: after the mid terms? I think it's I think it's

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Speaker 1: highly unlikely. I think that that his days are are

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Speaker 1: certainly numbered, and I certainly would not be surprised to

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Speaker 1: learn on Thursday that he has submitted his resignation to

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Speaker 1: President Trump and President Trump has accepted it. Now what's

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Speaker 1: interesting after that is what happens next, and so is

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Speaker 1: the President going to move another Senate confirmed appointee into

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Speaker 1: that position and who is that likely to be? And

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Speaker 1: I think that the greatest concern, and perhaps why the

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Speaker 1: President is most conflicted, is that is that decision. Is

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Speaker 1: that going to be uh? Is that going to consume

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Speaker 1: all of the media's attention over the next several weeks

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Speaker 1: leading up to the mid term elections. And I'm sure

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Speaker 1: the president and doesn't want that. He doesn't want the

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Speaker 1: Muller investigation to be the lead story every day over

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Speaker 1: the next five weeks, but instead he'd want the confirmation

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Speaker 1: of Kavanaugh, assuming it happens, and tax cuts and other issues.

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Speaker 1: You have to leave it there, Jimmy, that's Jimmy Garoule,

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Speaker 1: a Notre Dame Law School professor. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg